Justice Arthur Chaskalson
President of Constitutional Court
interview with Rupert Taylor
2 February 2000, The Constitutional Court, Forum II, floor 2
Braamfontein, Johannesburg, 3.00-4.15pm
Taylor: The project has been going for two years now. I don’t know if you’ve had a chance to look at the paper that I…
Chaskalson: I did read through it at the time.
Taylor: It gives an indication of what the project is trying to do. I mean, basically it’s an attempt to kind of give an alternative view to the kind of Patti Waldmeir, Allister Sparks interpretation of the transition, where the focus very much is on political leadership and… international pressure, and what the project is trying to do, what the research project is trying to do, is it to look at the role of anti-apartheid NGOs within South Africa and how they had an impact, and how they changed people’s perceptions of conflict, and how they in various ways challenged apartheid. And obviously we’ve looked at LRC, CALS and a whole range of legal organizations, and I’ve interviewed a number of people who’ve been working in this area. I mean last week I had an interview with Raymond Tucker, I’ve also talked to George Bizos and Charles Nupen and various other people who have been associated with LRC. If you don’t mind, basically the interview is structured around your own involvement in challenging apartheid - as you see I’ve got Rick’s book (Politics by Other Means) and - also, I found very interesting - Richard Rosenthal’s Mission Improbable (Chaskalson laughs), where you’re mentioned quite a lot. But I guess a good place to begin - if you don’t mind - would be to talk a bit about the setting-up of the LRC in 1978-79, and your involvement in that, and motivation for doing that. And then maybe move on to talk a bit about it’s impact and important cases that it played a role in putting forward, and it’s strategy as opposed to maybe - from what I gather a very different kind of legal strategy to the Centre for Applied Legal Studies. Maybe we can begin with your role in…
Chaskalson: Alright. Well, the people you need to speak to about the, if you wish to speak to others about the setting-up of the LRC, is Geoff Budlender - I don’t know if you’ve had an opportunity of speaking to him…
Taylor: No, I want to.
Chaskalson: Felicia Kentridge who is in England at the moment, but who does come out from time-to-time. There had in fact been discussions about the LRC before I became involved. I heard about those discussions from Felicia. And I was at dinner one evening where she was talking about what they had in mind and what they wanted to do, and it was something that appealed very much to me. I, Lorraine (his wife) and I talked about it afterwards and then the following day I got in touch with Felicia… something I’d like to be involved in, and that was when I entered the picture. I think the type of structure which they had in mind shifted a little bit, from then onwards but was, but my particular interest was in litigating and in focussing around… really form of lawyering as opposed to research and writing. Ah, this is me and that sort of… I’d get involved… in lawyering, not in lobbying and…
Taylor: …(not in) putting political pressure…
Chaskalson: Yes, political pressures through the media, it seemed to me that other people could do that very effectively, but that the lawyers skills were to be used, best used in dealing with, you know, in dealing with cases in the courtrooms certainly principally, obviously publicity would be involved in that, but the focus should be lawyering and not on any of those perhaps.
Taylor: At that time would it be true to say that you were one of only few people who had that interest?
Chaskalson: Well I’m not sure of that - I think that there may have been people who had the interest but didn’t have the opportunity of articulating it and finding ways of dealing with it.
Chaskalson: At one time there were very few people who - let me put it differently - at one time there were not many attorneys who were willing to act for the liberation movements, and the liberation movements had some difficulty in finding representation for members, for their members, particularly in the smaller centres, they could usually find lawyers in the big centres. The Bar on the whole was more amenable to taking on cases than attorneys, where because the attorney’s seemed to think that they would be totally identified with it, whereas the Bar had always taken up the attitude that they will appear for everybody and mustn’t identify the using of the Bar with the client; to appear for someone in a murder case doesn’t mean you support murder. And members of the Bar had greater freedom in things politically, possibly than attorneys, but the fact was that there weren’t a large number of lawyers who were actively involved in handling the so-called political cases.
Taylor: Mmm. I mean Stephen Ellmann in his book on the emergency law made some interesting and important points about… the point that conscientious anti-apartheid lawyers are not obliged to see themselves as activists, and that, that, in many senses may be more effective if one isn’t an activist.
Chaskalson: No, those are sort of debatable questions as to how to… I don’t think there’s one correct answer to that.
Taylor: Yeah, but you didn’t see yourself as an activist?
Chaskalson: Well it depends on how you define an activist, I think.
Taylor: Laugh. It’s relative, yeah.
Chaskalson: It’s one of those very slippery concepts as to what an activist is. I didn’t see myself as part of a political party.
Chaskalson: Or doing this on behalf of a political party. I saw myself as being involved in a sense in, in a much broader sense on behalf of those, by general, very broad, anti-apartheid movement.
Chaskalson: And saw that, certainly, certainly that reflected my own views, my own attitudes - that’s what I wanted to do, I wanted to find a way of articulating, the law provided that opportunity.
Taylor: And why did you have this motivation when others didn’t? I mean was that a product of coming through Wits, was it a..?
Chaskalson: I think you might ask that question of anybody.
Taylor: …of anybody. Yourself, there’s not a… defining moment?
Chaskalson: It’s just a life experience...
Chaskalson: …whatever may have happened to you on your way to a certain stage of your life that gives you those attitudes. A much more fundamental question is to ask people why they didn’t…
Taylor: Exactly, exactly, yeah. I mean did you have any, at the time you – in the late 70’s when the LRC was set-up - did you have any vision that it, or belief that it, would become as important as it did?
Chaskalson: No. I mean I’m surprised that it, looking back on it, it did far more and achieved a great deal more than I contemplated at the time. It grew, it got much larger, it became much more powerful, and integrated influence I think, than I would have speculated on at the time.
Taylor: And was there a general strategy for choosing cases?
Chaskalson: Yes, I think that the, we always had a clear idea of what, that we should take on cases which would have an impact. An impact either in the sense that they would set precedents for people similarly placed, or that they would have an impact in bringing to the public notice, securing relief, or even in failing to secure relief, in cases which deserved to be heard. And that by continually pressing such strategy forward that you would either show that the conduct was unlawful or show that it was unconscionable and not to be tolerated.
Taylor: You had a really strong focus on making sure you had a winning case?
Chaskalson: No, you didn’t have to have a winning case. But certainly it was much better to litigate cases which you’re likely to win, than the cases which you’re likely to lose.
Taylor: Were - what you took on - what you thought were winning cases?
Chaskalson: I would say that you would take on cases which you thought you could win.
Chaskalson: But even if you go back to the very first case - the Komani case…
Chaskalson: …when that case first came to us I was, I remember very clearly Geoff Budlender coming to see me, I was in the process of running down my practice, we’d formed the LRC, I was still had chambers at the Innes Chambers and I was running down my practice, I was dividing my time between the LRC and my practice, and Geoff showed me the judgement, when I looked at it originally I didn’t think that we would succeed. I read the judgement on the face of it, and I thought the point which had been argued in the Cape court which was as to the meaning of the person I think it was, was, that the judge was correct - you couldn’t say the person, that male person… you wouldn’t succeed, but it seemed to me that there was possibly another basis upon which you might be able to view the case, and that if anything we could push that, see whether we could something in the judgement, we’d try and sound out the court. I originally thought that it was the case that we were more likely to fail than succeed. When we started working on it we then saw an entirely different argument, which went to the validity of it; and we then had to decide how to couch that, we couched it in a form of challenging the validity. The Appeal Court actually went further than we thought there, they were prepared to take an even more fundamental line which emerged during the course of argument, the question was put to me by one of the judges who asked me whether I, what my contention was in regard to something and I said ‘No, it’s about for that reason’, and he said ‘No, it’s not for the purpose of this case to deal with this’, they went ahead on all of this.
Taylor: That was one of the more important cases, I mean the Rikhoto case was important…
Chaskalson: Well, Komani and Rikhoto and Mthiya - the three of them were very very important, yes.
Taylor: In pushing back influx control.
Taylor: Were there, on the other hand, cases that you thought you were going to lose but you actually won?
Chaskalson: Well, you know it’s difficult to say. We had… it was really cases which we, which I thought we would win, but lost (laugh). I mean, that started off as being a case which I thought we would lose…
Chaskalson: …and then won. But I finally got to argue, and I thought we would, I mean I thought - I didn’t necessarily think we’d win it, I thought we had a very powerful argument… I was concerned that the court may not accept the argument because there were all sorts of ideological obstacles to the finding. But I was still nonetheless thought it was a compelling argument which we ought to win. There have been cases, there were one or two cases, which we - there was one case I can remember which we lost, which I thought we ought to have won. Which concerned the termination of municipal tenancies, I thought, where subject to how housing is provided by local authorities. There even an agreement it seemed to me to be saying you can give notice terminating and that conflict came to the court saying we could terminate the lease in 54 hours notice, I thought that that power, it was a power issue… should have to be exercised reasonably and there had to be reasonable doubt and so you couldn’t terminate without agreement, without recourse, of course it was not conventional wisdom to say, it would have to be subject to… it seemed to me the mere exercise of public power… to do so subject to certain constraints. We lost that case. You know, we couldn’t get leave to appeal to the division; we tried to, we couldn’t get leave.
Taylor: I mean that raises the question I guess as well as to the extent to which during the apartheid era, judges lived up to ideals of neutrality and impartiality and objectivity. Which I think depended on, did it depend on the judge? or generally there would be a commitment to the law but the situation was an impossible circumstance of trying to…
Chaskalson: There was a very… There’s a contradiction in trying to administer justice in an unjust state, so that contradiction is inherent in the… and I think that within the range of the divisions there’s people who liked the laws, happy to, approved of the laws, there were people who tried to help the government, and there were judges who tried to run against the government. It’s very very complex.
Taylor: Yeah. I mean I was reading your article on ‘Law in a Changing South Africa’…
Taylor: …you have this quote from Judge Didcott…
Taylor: …on, ‘The result is law. But that is not always the same as justice’, and there’s this despairing cry about how to, how to give effect to equitable common law principles… And I think that’s, clearly, I mean there are two issues maybe, I don’t know, I’d like you to comment on is that, one of them relates to the inherent contradiction between the National Party’s emphasis on group rights and individual rights which the Law Society claimed… were inherently contradictory; that at the end of the day what is it, what is specific to group rights that can’t be justified by individual rights? And I think that was a barrier to (proper) understanding (by the judiciary) perhaps, the commitment to group rights?
Chaskalson: I don’t think so.
Taylor: You don’t think…
Chaskalson: I don’t think this had anything to do with group rights, I think that had to do with, simply with repression. I think that this was simply using the legal system to secure your own political base. Passing laws which would entrench you in power and keep you in power and put down any resistance to it, and using the law to shift the resources of society in a particular kind of… and not in another. If you’re talking about group rights then you would have some sort of fundamental equality between groups and that was absolutely the antithesis. So you cannot talk about group rights - where one side gets all the benefits and the other has all the obligations, that’s not group rights.
Taylor: But I guess, I mean the point I’m making is how apartheid would attempt to look for intellectual credibility to it’s, intellectual credibility to it’s ideology by appealing to group rights over individual rights.
Chaskalson: Well I think that that the way it sought, it sought to get, to legitimate it’s position was to claim that the only citizens of South Africa were whites, and therefore the only people entitled to rights and the benefits of society were whites, and that the others were sojourners in the society, temporary residents, who had no long term interest, who would be told regularly in the same way migrants were told regularly in other foreign countries, and that they sought to justify their conduct that way. But you know, I don’t think that, I think that its impossible on any rational basis, rationally objective basis to find any justification…
Taylor: I agree.
Chaskalson: …outside of naked power.
Taylor: Yeah, I agree totally. I mean, it led to, it led to the law being blind - if you like - to non-racialism.
Chaskalson: Well, I think that part of it - the law, ones got to go back before apartheid took place.
Chaskalson: Because if you go back before apartheid, you’ll - and you look at the judgements of the courts in the 1930s, the 1920s and before you’ll see heavy racist comment emerging from them. I don’t know if you’ve had the opportunity of reading the two books by Forsyth and by Corder, dealing with the Appellate Division, the jurisprudence of the Appellate Division since it was established in nineteen-hundred-and-ten. If you look at it, you’ll see that in the years before apartheid there racism was inherent in the legal structure; both in its laws, in the attitudes to judges, and jurisprudence… - it didn’t just pop out of the sky in 1948. In 1948 it was formalized, institutionalized…
Chaskalson: …and given an ideological base, power, different ways to existed before.
Taylor: But I mean in looking at political trial transcripts and political trial cases it seems to me that the state could not see, or could not reconcile a non-racial political position with a non-violent one, there was always an attempt that - for example, majority rule would be reduced to black majority rule and change would only come through violence.
Chaskalson: The argument was always, the government - the present government will never agree, therefore if you espouse a contrary view you can only achieve it by coercive means, therefore you are engaged in promoting… I mean, that was always the argument.
Taylor: Mmm. And in contesting that argument what was the most effective ways of contesting it?
Chaskalson: Well I mean, the point was it was a logical fallacy.
Chaskalson: The… but the issue, I mean that issue failed really in the Treason Trial.
Chaskalson: The whole, the whole of the treason trial was based on that, that argument - and it failed. It was tied to a much larger argument that there was a communist conspiracy, and that communism could only achieve its goals by violent means and therefore communist conspiracies that applied violence you couldn’t be a communist unless you were certified - that was one such theme, but there was a much bigger theme; another theme based on this. This argument I heard on a number of occasions and I think that the answer is that the… that you… you know the assertion of a contrary view and the struggle for a just society doesn’t necessarily mean that we have to engage in violence… It’s just as simple as that, you can’t say that the one is inconsistent with the other.
Taylor: Mmm. I mean George Bizos talks about how defence strategy was around a Socratic defence, is that something that you would go along with?
Chaskalson: I’m not quite sure what George has in mind when he talks about a Socratic defence.
Taylor: Well I mean… here we are, for example (from Bizos memoirs), ‘There was going to be what I call a Socratic defence like the Treason Trial of 1956-61. We would admit most of the facts but then you say far from committing any crime, I have done my patriotic duty and shouldn’t be punished… (what you would do, would be to) try to turn the tables by showing the government policies are wrong rather than what the accused have done’.
Chaskalson: No, that’s right. But I didn’t realize that that was Socratic - it may well be, I mean, George has… I’ve always understood the Socratic method as being a lot of questioning and… no doubt, Socrates probably put the Republic on trial at some stage…
Taylor: Actually… well, his own trial.
Chaskalson: Look, it was a common… basically if we were running a political case we would put it that way.
Taylor: And that was the whole..?
Chaskalson: Oh, that was always done whenever you had a problem.
Chaskalson: But certainly the whole basis upon which the Rivonia trial was conducted was it was never a question then of contravening the laws, it was accepted the laws were broken; but essentially that one was entitled to do that.
Taylor: Sorry, I mean would you go along with the argument that at the end of the day these kind of political trials were counter-productive to the state, because of the fact in which it opened the state for contestation and…
Chaskalson: I think it had a down-side as far as the state was concerned, that’s why they were continually passing laws to remain, the conduct of the cases in order to, maintain in some way the cases, and it may even have been why they started resorting to extra-legal tactics of murder…
Chaskalson: …detention… I think they definitely had a down-side as far as the state was concerned.
Taylor: Mmm. And would it be true to say that the major trial you were involved in, in a major way, would have been the Delmas trial or..?
Chaskalson: No, it was the Rivonia trial. I think.
Taylor: …the Rivonia trial. That was the…
Chaskalson: …the biggest trial that they did, of the century, you know.
Taylor: Yeah. And you see a common pattern between state strategy there and Delmas?
Chaskalson: Well, it was different, Rivonia was quite different. Because the circumstances were quite different. I mean in Rivonia the people who were on trial… took up the attitude that we did what we were planning for, we were making plans for guerilla warfare, we have engaged in unlawful activity, we were continuing in our political acts of the African National Congress underground, we were making preparations and we had engaged on preliminary acts of sabotage. All of that was very indiscrete, what they said was we were encouraged to do this because you left us no option... And so that was the paradigm that was going at that point. Delmas was really quite different; Delmas - what was happening in Delmas was that the UDF leaders were put on trial and they were saying that we have started this initiative ourselves - we have reached the stage where we have come together and decided we are going to do something inside of the country, struggle - there should be a struggle against apartheid, a struggle waged from within, it shouldn’t be left to the outside - that we will do it and we will do it independently off our own, not subject to any instructions from the outside. And we are going to start, so we will start this organization to mobilize and organize people to voice their protest to the tricameral parliament. And it grew far beyond what anybody ever would have anticipated when they started, it had a tremendously rapid growth and there was an outpouring of dissent all around the country and then there started to be action-reaction, violence in many different parts of the country. Some triggered by police action, some triggered by protesters themselves, and then ultimately the leaders of the UDF in the Delmas trial were put on trial on the basis that they were doing this, that they were doing this on behalf of the ANC, and it was part of a plan to, which involved the violent overthrow of the state - now that was the allegation - and both those allegations were denied, so there was a fundamental difference.
Chaskalson: They didn’t deny the protest, they didn’t deny the speeches which were being made, what was being said, what was the… all that sort of… we are entitled to do that, and we were doing it on behalf of the United Democratic Front; we were entitled to do so on behalf of the United Democratic Front - and we weren’t preaching violence, the violent outbursts that occurred were not of our initiative, we didn’t incite anybody to do this, authorize anybody to do it - these things happened around the country at that stage for possibly socio-political dynamics, the action of the state, reaction of the protesters and so on.
Taylor: And there was no direct link between the UDF and the ANC presented by the state?
Chaskalson: No, no there wasn’t. There was never any direct link. The most direct link there was, was the ANC issuing the publications through, statements through its publications of shock, where it was urging people to join the UDF and praising the UDF and in someways even trying to claim credit for the UDF.
Chaskalson: It wasn’t particularly helpful for the UDF leaders in the country. They steadfastly took up the attitude, you know, they knew about the ANC - but they… not that they were opposed to the ANC, they regard ANC leaders as leaders of the country, Mandela… they saw themselves in the line of Congress tradition - they were doing it on their own behalf.
Taylor: Looking back now, is that credible to you?
Chaskalson: You know it is credible. I think it’s credible in this sense that - and I don’t really know what the details are - I think it’s credible in this sense: that it really was all done through Lusaka, I don’t think so. I don’t think it was manipulated from outside, I think, you can’t control it - that there may have been contact at some stage, no that’s a different matter, there probably was at some stage. Somebody must, some leaders must…
Taylor: Meetings, yes.
Chaskalson: …there would always have been leaders, there would always have been ANC people inside of the country who would have moved into the UDF. And there would have been people inside of the country who, who may have had direct contact in different ways… but the way things were developing it certainly wasn’t being controlled from the outside.
Chaskalson: Now that I, I would be amazed - I mean, I really don’t think there was. And I think if the ANC claimed it it would be a false, you know…
Taylor: It would be writing history backwards?
Chaskalson: Well no, not in writing history backwards. I think it would be… The truth of the matter was things moved so rapidly here, that it was impossible to take formal decisions I would have thought.
Chaskalson: But that there may have been leaders of the UDF who had close links with the ANC; they may have been exchange of information here, the ANC may have sanctioned it, in the sense that they sanctioned Inkatha at one stage. All of that, you know, quite possibly and probably… How, quite how much you can say this was an ANC initiative, and how much you can say that it was an initiative which was compatible with the ANC and was carried out with its blessing, I’m not in a position to…
Taylor: In my view it would be, yeah, it’s more of a dynamic relationship, but it’s not a one-way causal…
Chaskalson: I can’t answer that, you’ll have to go and speak to the people concerned. You’ll probably find everybody…
Taylor: …everybody has a different story; some people will say yes we were, and other people will say no we’re not. I mean…
Chaskalson: I don’t know today. If you asked them, if you asked them in 1980’s, you may have got different answers, but what answer you get today I can’t tell you. I don’t know, I don’t know what the… what the core facts are if you like. Somebody should write that.
Taylor: Yeah. It’s interesting. I mean, in Govan Mbeki’s book, one of his books, Valli Moosa says no there was hardly any connection, on the other hand Father Makhatshwa says yes there was a very strong connection. So, even within the UDF there were different…
Chaskalson: When did Valli make the statement?
Taylor: This would have been, maybe about ’92.
Chaskalson: After the unbanning of the ANC?
Taylor: Mmm, oh yes.
Chaskalson: You see it depends upon what you talk about a connection; because you can have a connection based on an ideological inperfeticant - these are our leaders, we see the ANC as our leaders.
Taylor: Also like when I’ve asked people about connections to the ANC, they say ‘Well, which ANC?’ - because there were so many different points of intersection; some people were intersecting with the political wing as opposed to the military wing; some people were interacting with London as opposed to Lusaka or Botswana or Swaziland; it becomes a very complicated picture. But was the Delmas case a case that you thought you were going to win or loose?
Chaskalson: Well… it was a case which I thought… I think it was a case which I thought we ought to win on all the major issues…
Chaskalson: …and we didn’t.
Taylor: The reason for this was the judge…
Chaskalson: Well… we didn’t. In the end we won because of the irregularity in the proceedings, there we never had, we never went into the court - the conviction was just set aside.
Taylor: Mmm. Going back… I mean you’ve talked about the LRC’s impact in contesting influx control with the three - Komani, Rikhoto, Mthiya - cases. Were there other landmark cases that you would identify the LRC with?
Chaskalson: There were a lot of cases which worked around the forced removals; certainly a series of the Oukasie cases were very important events effecting forced removals, there were quite a lot of cases - one would have to go and dig out the LRC Annual Reports to look for them. You know the ones which are always quoted are Komani, Rikhoto and Mthiya because they were the most profound, and they fundamentally affected the whole system, but there were lots of other important cases around influx control, around labour - we acted in some of the early strike cases, which were very important; around forced removals, around farm labour. There were lots of very very important…
Taylor: In terms of the paper that I sent you - I mean I don’t know what you made of this kind of attempt to construct a network?
Chaskalson: I had a little bit of a problem with it…
Taylor: The main argument really is to show; in this project we found it very difficult to look at the particular impact of any one organization…
Taylor: …because often they were interacting with others.
Chaskalson: I think that’s absolutely right.
Taylor: And I guess it’s… I mean you (LRC) and Black Sash played a crucial role in the influx control cases, TRAC with the forced removals; did you see LRC as part of a kind of a network which you were…
Chaskalson: Yeah, oh yes. I think everybody realized that the LRC was, I mean the LRC always saw itself as being related to community organizations - as it were community advice offices, residents associations, with groups which were set-up - one of the groups which was set-up to deal with the, the Group Areas Act cases - Actstop. Actually a very interesting group; we had a very important impact upon group areas, and it should in a way be included on your list, but of course it - Mohammed Dangor was a very important person. It actually organized and mobilized lawyers and people around the group areas issue, and it was as a result of Actstop’s activities that Hillbrow ultimately was defended and became, they couldn’t do anything, because… they couldn’t use the courts to prosecute. They tried once and Actstop we were… a whole group of lawyers went down to defend cases and they couldn’t run the cases, they discovered they thought they’d get a hundred people jailed within a day, by the end of day one they had five or seven cases on the go, the cases then ground to the halt because the witness of case one was required in case two, I think, and had to stand down. Then a point was taken on the legality of the proclamation, the whole thing was held up. And then ultimately Judge Goldstone gave a judgement in one of the cases which was one of the Actstop cases, talking about eviction orders oughtn’t to be made without the court inquiring into alternative accommodation, and then the whole thing collapsed and they gave up. And that marked the end effectively - in Johannesburg - of attempting to enforce the Group Areas Act in Hillbrow...
Chaskalson: And I thought Actstop was very important.
Taylor: Yes, I should look at that in more detail actually.
Chaskalson: And it was just a community group which grew up. It started right at the beginning in a way when there were discussions with lawyers, and the lawyers said well you’d better go and turn into an organization - lawyers don’t have the time, the ability, nor should they be running around trying to organize and mobilize communities and get things done, if you want to take on these cases there should be a back-up organization.
Taylor: Mmm. The LRC position was, although it was engaged in activist work, it took an apolitical stand - in it’s organizational entity…
Chaskalson: As an organization…
Taylor: …but within it people could have their own political agendas…
Chaskalson: Yes, yes.
Taylor: …but actually as an organization it was not… not want to be seen to be…
Chaskalson: It didn’t align itself directly with any particular organization within the broad anti-apartheid movement.
Chaskalson: But it located itself certainly within it.
Taylor: Yes. And that gave you a space within which to operate. But I guess, I guess you, I’m sure you must have got a lot of criticism from the Law Society?
Chaskalson: I don’t think so.
Chaskalson: No (quietly)… the Law Society didn’t try to stop us.
Taylor: It wasn’t frowned on with, with maybe…
Chaskalson: Nobody tried to stop us from the Law Society or from the Bar Council.
Taylor: Well, I guess what was also crucial in the growth of LRC - I mean by the 1980’s it had a broader range of public interest legal work, a large number of people involved - but I guess what helped made it possible was the funding.
Taylor: And that without funding it wouldn’t have…
Chaskalson: No, that’s absolutely correct…
Taylor: And that funding had to come from overseas?
Taylor: There was little support from within the country?
Chaskalson: Certainly not sufficient. Sorry, will you excuse me… break to take phone-call.
Taylor: So international funding was a crucial..?
Chaskalson: No, it was absolutely fundamental; we couldn’t have done it without the funding.
Taylor: That was the Ford Foundation? Yeah…
Chaskalson: Well there were, the Ford Foundation was one of the original funders, there’s the original funders of the LRC - the original core funders were the Ford Foundation, Carnegie Corporation of New York, and the Rockefeller Brothers Fund: Ford Foundation and Carnegie Corporation were the two major funders - Rockefeller Brothers Fund was a small one, the Foundation would be a best one. Small sums of money came from within South Africa, but not… I’ve forgotten what it was, it was around 10 per cent of the budget, 20, 15 per cent. We raised I think R30,000 within South Africa, about R170,000 and outside, we started with practically about R200,000. And now it’s leapt-up, I think it’s close to 15 million.
Taylor: Yeah, that’s true of some other organizations we’ve looked at; Idasa is another one that’s grown from, struggled from getting funding and now has something like 30 million. But, talking about funding, how crucial… well your views on the role of the IDAF, the International Defence and Aid Fund, I guess that made possible a lot of your work?
Chaskalson: In the sixties… Well at two different levels. Originally it was based, it had a… originally the Defence and Aid Fund was a South African organization funded largely from overseas, it was then banned. Then there was the international fund which really routed money I would say, but it did it, it didn’t do it openly.
Taylor: Yeah, I read in the British Law Society Gazette they had an interesting article talking about the various ways…
Chaskalson: Yes, that’s right.
Taylor: …in which they channeled the money.
Chaskalson: Attorneys would suddenly get instructions from Lord somebody-or-other, and the people who did exist, they’d both say I’ve got a client, and money came in that way. It didn’t come in from the Defence and Aid Fund…
Taylor: …it came through various channels. And was there, and that money was basically just no questions asked, just presented..?
Chaskalson: Well, I don’t know. You see, I never had to do that. That was dealt with by the attorneys who were handling the cases who got money in this way.
Chaskalson: Our money was always dealt with perfectly openly.
Taylor: Right, I see.
Chaskalson: All the money that we got were reflected in our Reports, we identified the donor, we said exactly how much money each person gave us. So we never did that at all. The attorneys may have, what may have happened is - there you’d have to speak to the people like Raymond Tucker and others who were acting - which presumably had a case which came about, somebody was arrested, and the client, somebody would then write to the attorney to say would they please take on the defence, would you take on the defence, ‘x’ amount of funds should be reasonable to cover it… occasionally I think attorney’s would write to people overseas and ask them.
Chaskalson: But they weren’t, they weren’t addressing any of the enquiry’s - they kept saying...
Taylor: I guess LRC had to be very clear with it’s finances, because no doubt you…
Taylor: …a lot of attention from the state.
Chaskalson: Oh yes. No, we were very very careful to make sure that there was no problem about the way we handled our money, we accounted for our money, we got very strict controls over how money was used, accounted for everything that we got, we publicly acknowledged what we’d got and how we’d spent it.
Taylor: To what extent, do you think, the LRC came under the surveillance of the Security Police and attempts to..?
Chaskalson: Well they undoubtedly did, because there are documents which I don’t have, but which were shown to me some time ago, where they were planning to ban it.
Taylor: Really. That would have been in the mid-80’s or..?
Chaskalson: I think it was in the second half of the eighties. Actually they’re documentation which was made available at one of the inquires where the Minister of Justice had proposed to ban the, he said ban the LRC.
Taylor: And why do you think they didn’t?
Chaskalson: I think there are a number of reasons. First of all they had to try and lay the ground for it; they had to try and get rid of some of the trustees who were very reputable people - who they had difficulty in getting rid of. And I think political events started very quickly at that time, that the course of events possibly overtook what they were doing. But they, there were plans, they were intricate plans… Well, I’ve seen the documents, they were shown to me, they’re available.
Chaskalson: If you speak to, if you visit, if you have any interest, you could speak to Steve Kharnovitz of the LRC in Cape Town I know he’s got them.
Taylor: - Kharnovitz (writes this down) …I mean, as today is, as you raise the issue of the changing nature of the state’s position, today is 2nd February, it is ten years since de Klerk’s speech…
Taylor: …were you surprised?
Chaskalson: Yes, totally.
Taylor: I mean you were aware, obviously, of the negotiating (indicating the Richard Rosenthal book) - some of the negotiations that were going on, although Richard’s role may be (laughs)…
Chaskalson: Yes, but I mean that’s a different thing, I mean. I looked at a speech I made in June of 1989, where I was speaking in Europe, and I finished by saying that the contradictions in apartheid were such that it couldn’t survive and there would have to be, there would be a fundamental change, it was likely to happen sooner than many people would think. But I was totally surprised when de Klerk...
Chaskalson: I thought that de Klerk was bound to do that anyway.
Taylor: And in that collapse, I mean, what do you think the role of, in attacking apartheid through legal means and the role of the law was? I mean, Rick’s (Abel) conclusion is a bit kind of, well it is supportive of what people were doing but also, you know, it tends to emphasize the accidents of history a lot as well in the…
Chaskalson: You know, I think that you can’t… I think that you’ve got to look at it as part of a, part of a whole web of forces which were being brought to bear, I mean, the law itself would never have brought that about.
Chaskalson: But then you might say, a whole lot of initiatives were on the table… I think that the very fact that they, the importance of the law was that it gave victory and peace for the articulation and challenge of the, which would feed into other areas of resistance. And you can’t separate those.
Taylor: I mean, like when I interviewed Frederik van Zyl Slabbert he made this nice analogy to chaos theory like when I asked him the influence of Dakar in 1987 he said you know it’s like chaos theory - the flutter of a butterfly wing’s, does it create a hurricane? No, but it was actually part of the product… you can’t actually abstract out the role of all these things because they are really so interconnected.
Chaskalson: If you’re looking at, you’re looking at things like internal resistance which was very very important, if you’re looking at the external isolation, and you’re looking at the consequences upon the economy of the internal resistance and the external isolation, those were the huge issues which ultimately brought down apartheid, because… it became extraordinarily difficult to govern, it became extremely costly to govern, the economy was in ruins and something had to be done. One looked down the road to see the inevitability of… collapsing, and so a decision was taken to do something.
Chaskalson: Now if you’re looking at each one of those things there are a whole variety of forces which feed into; internal resistance in a sense is supported by various props of the broader anti-apartheid movement to resisting, it supports it by challenging action; by giving people the opportunity to defend themselves; by giving people the opportunity to curtail government action; by holding government to account for certain circumstance - all of those things put strains on structures, encouraged people to see that they are not totally isolated, feed into the outside world in public, through the media as to what is happening. So that all these things feed into each other; now in on it’s own the legal factor it’s a small one of those.
Taylor: And in that picture that you have painted, how would you… what weight would you want to give to non-racialism, and the way in which these organizations may have worked to promote non-racialism? Because LRC certainly, in terms of its own internal structures, attempted to promote non-racialism.
Chaskalson: You know I think non-racialism was fundamental to resistance to apartheid. I think the resistance to apartheid, other than a non-racial basis… You know, there would be problems as to whether it was white-led/black-led, whether it consisted mainly of whites or mainly of blacks, but I think the attitude of many of the groups were non-… even groups which were largely white, like the Black Sash, which I think for most of its life, for most of it’s - there may have been a time when in fact it seemed to have picked-up a number of black members - but it was it almost, certainly when it started and for most of it’s life, it’s actual members were largely white, but it was a non-racial; it espoused non-racialism in the most positive fashion.
Taylor: Yes. And LRC attempted to be non-racial in it’s internal structures?
Chaskalson: Yes, I think so. I think that it was a question of evolvement; if you look at the people who started at the beginning were white, the three of us were white - who started it, but if you look at it over, as a period, as it evolved you would see that it had a very significant number of black people. You may say that for a certain part of its life the white, the white component of it was more powerful, but I think you know non-racialism is… non-racialism is something different from the colour of the skin.
Taylor: Mmm. Do you think that is true that the non-racial element has tended to be defined out of many understandings of the transition and this kind of thing. I mean, you know, everyone talking about the transition as being unexpected, as a miracle. But my view would tend to be that it’s only a miracle if you’re actually caught in a racial black/white mentality.
Chaskalson: I think that the, that the history of the Congress movement with it’s emphasis on non-racialism and the fact that the ANC has been a dominant figure in the transition, that had profound effect on the nature of the transition. That’s very important, they made possible, in fact none of otherwise would have been.
Taylor: In the court work that you did, in the trial work that you did, did you get many people being very wary of you because you were white? Or did they see beyond that issue?
Chaskalson: No, I don’t think so. I think that there may have been one or two occasions when younger people raised the question of why are we having whites defend us.
Taylor: But once…
Chaskalson: But once they were spoken to by the older people, then got involved with us, that fell away completely.
Taylor: After having seen…
Chaskalson: Well, I mean it was a relationship that was always, was always one which would have transcended those sort of things.
Taylor: So you would say that, I mean some people would talk about the Treason Trial - well the Treason trial itself, as being where to days, months, people were (together), it helped instill non-racialism and I guess the same could be said for other political trials - that actually brings people together, actually helped promote a non-racial identity? or not?
Chaskalson: I think all activity which was…
Taylor: I was reading Anthony Sampson’s book on Mandela where he makes this point about how…
Chaskalson: I think that all activity and it’s move from the basis of… from a basis of… I think that non-racialism is such an abstract term. I don’t know exactly what is comprehended by non-racialism, it can be misunderstood at times, but it seems to me that actions which precede from the basis of showing that racialism, that your actions are not affected or motivated by racial consideration in your relationship to other people and your view, that kind of liberal, all of that happened to have an effect on promoting that ideal.
Taylor: Yes I think that’s, to me, that’s one of the crucial things about the eighties; that non-racialism was a transformative vision; that people had this vision or had this commitment to a (future) - I mean not only did it have a commitment to a democratic non-racial future but actually attempting to live it in the heart of apartheid society. Many of these organizations that I’ve looked at where trying to do that…
Taylor: …that they were practicing a non-racial democratic South Africa in various ways, by doing that they helped actually make that future more possible.
Chaskalson: Yeah, and identified themselves, I think the fact that whites identified themselves with the struggle in different degrees was very important to the fact that it not being seen as an exclusively black struggle. I think that whites went to jail, and there of course the Communist Party was quite remarkable.
Chaskalson: That the white Communists were the ones, overwhelmingly, the ones who went to jail.
Taylor: Mmm. And the fact that LRC and others were involved in this legal work, made, helped to instill a notion that the law could be colour-blind even though it wasn’t.
Chaskalson: I don’t know if the law could be colour-blind, but that the law had values, you know...
Taylor: Right, yeah. That’s a better way of putting it.
Chaskalson: …The law could be used, the law could be used - not necessarily that it was colour-blind - but it was one of the institutions which was accept- accessible to people which, challenging against apartheid could be, I don’t know; sometimes we won, sometimes we lost. But you could actually effectively challenge certain aspects of it, you couldn’t overthrow apartheid - a fallacy if anybody thought that you could.
Taylor: Yeah. What is your view of Richard Rosenthal’s initiative?
Taylor: I mean you get quite a few mentions in the book, about how he met with you, and how he was informing you of his attempts at independent…
Chaskalson: You know, I don’t really know… I find his… I think it’s a fascinating story, it’s an amazing story. He’s a marvelous person, Richard. Do you know him?
Taylor: No I don’t, I’d like to talk to him.
Chaskalson: A very interesting and engaging person. You know, nobody would have thought, nobody other than Richard would have thought of going out on an adventure like that on his own.
Taylor: It’s quite incredible to read. Can I contact him through the LRC in Cape Town? or..?
Chaskalson: He’s not at the LRC in Cape Town anymore. You’d have to contact him… I can give you… (goes to fetch Richard’s phone number) It’s very difficult to answer, it’s like everything else - yet clearly something happened as a result of that, how you evaluate that I really don’t know. I see Thabo Mbeki wrote a foreword to his book.
Chaskalson: I’ll give you his home number, I’ve got his work number - his work number is Cape Town 232-975, his home number is Cape Town 794-5177… I mean I can’t answer that question. I really don’t know, but I mean the fact all of these things, you can’t estimate what would have happened - the fact that there was some communication being made, it’s like the meeting in Dakar, as Slabbert told you, the fact that the ANC was meeting and passing messages and getting information through the fact that somebody within government, whoever it might be, was sufficiently interested to make this contact and continues to.
Chaskalson: It must have had some impact. How you… what weight you give to that impact is really impossible to tell.
Taylor: Yeah, it comes back to that earlier question, of course, on impact.
Chaskalson: I mean I’ve just got no way of evaluating because I don’t know, you know there are a whole lot of other things going on at the same time.
Taylor: Also it’s difficult to understand exactly what his (Richard’s) relationship with Stoffel van der Merwe and PW were, I mean it’s not sure how well informed, it’s not clear the extent to which Stoffel van der Merwe was making clear to others…
Chaskalson: Yes, absolutely. You can’t tell from that.
Taylor: Whether he was being strung along or whether or not actually there was something more to it…
Chaskalson: You can’t tell from that.
Taylor: You can’t.
Chaskalson: But the fact of the matter was that he was meeting….
Taylor: And Mbeki took him seriously and he thought…
Chaskalson: Yes, and he took him seriously, and then had meetings and he’d go to Lusaka, then he’d go to Europe, and they would have these meetings and he would come back to van der Merwe, and van der Merwe would come back to him, and these things were passing and diplomats were getting involved. So something was happening.
Taylor: Yeah. There were so many initiatives actually that were happening in the eighties that now looking back on one can look at - I mean I had a very interesting interview with H.W. van der Merwe, I mean he was the first to go to Lusaka in ’84 with Piet Muller. But you yourself were involved in some Idasa things, no? You wrote an Idasa paper.
Chaskalson: I have written, I may have spoken at an Idasa conference…
Taylor: But you didn’t take part in any…
Chaskalson: I didn’t go on any of those safaris if that’s what you mean.
Taylor: No, or Europe or… I mean they had so many events. But… no, I think that it’s an interesting book.
Chaskalson: Can I have a look at that diagram again? There’s something about it when I looked at it which rather puzzled me… I couldn’t work out how the linkages were made, for instance there was quite a strong link between the LRC and TRAC…
Chaskalson: Which I don’t see there. LRC and CALS there seems to be a linkage.
Taylor: Mmm. It is difficult, I mean…
Chaskalson: I’m looking at a lot of these. The LRC had contact with quite a lot of these - not all of them, quite a lot of them at different times.
Taylor: I mean, basically, one would ideally like to construct a kind of three-dimensional model because it’s very difficult to actually construct this so that it could have…
Chaskalson: The LRC was really quite active in the setting-up of IMSSA. The LRC didn’t have so much contact with Idasa. It had a lot of contact with TRAC, it had some contact with the Human Rights Commission, it had some contact with Nusas, it had some contact with the End Conscription Campaign - certainly active people in it. It had some contact with the N-E-double-C (NECC), it had a lot of, quite a, a good deal of contact with the SACC - so the point is, the points of contact were more complex I think than that is reflected in that diagram.
Taylor: I agree entirely - and the problem is one of complexity of drawing the diagram; I mean the way the diagram is constructed is to centre on these ten organizations, so it’s an attempt to show the connections of these - it hasn’t attempted to show the interconnections with all of these. Because if we were to do what we did, you suggest for the LRC, with all the others, you would get such a dense network.
Taylor: But the problem that I’m confronting now is the justification of why focus on these ten and not… I mean that’s the challenge I’m facing in writing it up. Is to try and think of the best way of diagrammatically relating all these organizations…
Chaskalson: Well I’m not sure what those ten are…
Taylor: Well they were chosen primarily because they focus on peace and conflict resolution, and strategies of mediation and notions of impartiality.
Taylor: I mean I think that was an attempt, again these things are never discrete, but that was part of the strategy… A final question really, I guess, if I could ask you about your role in, or your views on, political trials in the 1980’s and their impact. I mean you were involved in many… I had an interview the other day with Glenn Moss for example, talking about the Nusas five and your role in that, and a whole variety of political trials. I mean it was clear that in the white community they had an intimidating effect on the white left, I think.
Taylor: And maybe that was there key purpose, because if one looks at the Nusas five the case was really - I can’t see how they could have (laugh) thought they could win it. I mean, maybe it’s true they were going to bring Craig Williamson into the picture but then held back - I don’t know, but...
Chaskalson: I think they were trying to, they were trying to show furthering the objects of an unlawful organization, and there was a very wide definition of what furthering the objects was.
Chaskalson: I think they were just trying to say that if you’re doing the same thing as the ANC does then we’ll do everything to stop you.
Taylor: Yes. But then the argument is… you know, showing how these were common with the Universal Declaration of Human Rights, and how they were common with democratic… I can’t see what they… You know I only came to South Africa in the late-80’s so I cannot imagine what the climate would have been like at that time, ’76, but… I think, the point that many people make is that the state was trying to defend the impossible… I mean it was illogical.
Chaskalson: Well I mean it was a question of using repression, at times you used courts to legitimate repression.
Chaskalson: To do that you passed laws, so that they could make use of the courts for that; political trials were an aspect of that, and they covered a whole gamut. I mean would you regard a pass offence as a political trial? If you look at, just all of apartheid laws were political…
Taylor: No, yes, sure. I mean remember reading something that Glenn wrote in 1980 where, it’s an article trying to contest the state argument that… I mean the question is when is a political trial a political trial because the state claimed that there was no such thing as a political trial, and I don’t know…
Chaskalson: The state used to say there’s no such thing as a political trial, these are criminal offences.
Taylor: Yeah, ‘it’s a criminal offence’. But then, you know, I mean this article I was reading, Glen was showing all the differences between the two, so it was clear. But I mean, I think at the end of the day, yeah - it depends how you define ‘political’, and that essentially most of apartheid law was political, and so maybe even the category of political trials, which one sees a lot, covers…
Chaskalson: Covers a whole thing, but political trials usually people regarded, characterized as political trials, those offences which were tied up with some organizational, or mass movement activity, usually that was regarded as a political trial, but I mean I think that prosecution under the Group Areas Act was a political trial.
Taylor: Yes. Yes.
Chaskalson: Prosecution under the Immorality Act was a political trial. All of those… those were offences which existed as offences purely because of a political ideal.
Chaskalson: And which wouldn’t hold any water in a democratic society, you know it would be regarded as unlawful.
Chaskalson: But I think… political cases usually termed, what people talked about as political cases, they tended more to be people more who were in pursuit of overtly political goals in what they were doing; whether it was blowing up a bridge, or organizing a strike, whatever. Making speeches - you know anything. Anything organization, or anything done with a purpose and to achieve a political purpose, could be regarded as a political trial, where, as things done contrary to laws which had a political-ideological foundation, they would be characterized in that way.
Taylor: And I guess at that time and throughout the eighties there was no, there was no way of imagining that one day you would be sitting here in Braamfontein…
Chaskalson: No (whispers).
Taylor: …as President of the Constitutional Court…
Chaskalson: Never (whispers).
Taylor: …with a Bill of Rights and…
Chaskalson: No, well look. You say ‘no way of knowing’, of course there was no way of knowing… there was a lot of talk about the need for a bill of rights.
Taylor: There was a lot of talk about law in a post-apartheid South Africa.
Chaskalson: Yes, there was this debate about what it should mean.
Taylor: In that regard, I mean CALS is probably very important in putting…
Taylor: …that debate on the agenda, and also in actually getting, helping to force the ANC to develop constitutional guidelines and debates around…
Chaskalson: I don’t think CALS had much to do with that.
Chaskalson: With helping the ANC to develop guidelines. No, I think…
Taylor: Not to help, but to contribute to the debate I suppose.
Chaskalson: Well it depends what you’re talking about. If you are talking about the ANC’s constitutional principles themselves, I mean if you go back to the Harare Declaration that were quite important, I wouldn’t have seen CALS as having any influence in that.
Chaskalson: I don’t think that CALS or the LRC or anybody had any influence… I think that came, that came from a whole series of other… If you are asking about the ferment in the nineties…
Chaskalson: …after the unbanning of the ANC…
Taylor: …that’s a different story.
Chaskalson: That’s a totally different story; CALS was very active at that stage, as were a lot of other organizations. CALS was particularly active; it hosted a number of conferences, it co-hosted conferences, it worked with the ANC constitutional committee in organizing things, so in that period 1990-1994 it had a very very active role in helping to promote the constitution and legal debate which was taking place. I would have said that before 1990 it’s role was somewhat different.
Chaskalson: It’s role though was much more eclectic than that of the LRC, before then, in the sense that it was raising issues, challenging issues, sometimes the debates and discourse I would say they were less moved through legal, less through court action - and through conferences and debate.
Taylor: Raymond Tucker made the point - and I don’t know if you would agree with it but he argued that CALS’s strategy was more a kind of philosophy of the losing case, than…
Chaskalson: No, I don’t think so.
Taylor: You wouldn’t go along with that?
Chaskalson: No, I don’t think so, I really don’t think so. I think it goes back to something that John Dugard once did in regard to the Group Areas Act, where he wanted to argue the case for Werner, and he took on that case which looked as if it might be a losing case, it was a losing case. I don’t think CALS set out to fight the losing cases. I think it, I don’t agree with Raymond at all in that - I think that what happened as far as CALS was concerned is that they might have been more willing to devote resources to losing cases than the LRC was; we had limited resources and we’ve got to work out where you can use them best.
Taylor: Mmm. And was it very difficult in selecting cases?
Chaskalson: Difficult not so much in selecting cases, it’s how to use your time.
Chaskalson: You’ve got a limited amount of time, you’ve got a demand on your time, you’ve got to make choices. And some criteria were, this was a case, I mean Werner was a case which I wouldn’t argue, but John Dugard wanted me to argue, and I said no.
Taylor: In retrospect where there opportunities lost?
Chaskalson: Maybe, I can’t answer that. I mean I think the, to me the, to me if you could apply your resources in a way where you could get tangible positive results you were likely to achieve more than if you tied your resources to ways in which you wouldn’t get tangible and positive results; now one of your tangible and positive results of fighting a case would be publicity and identifying with this - and everybody would recognize that of course - but then you had to weigh it up against, I mean if you had limitless numbers of people who had a limitless number of things and they could all do whatever they wanted to do (laugh) then you could take on everything that came your way - but that wasn’t the reality. You had to make choices, as to who you would, who you would act for. What happened when you became, what happened when your people were over extended, what could you do - because if you take on too much you do everything badly, and you achieve very little.
Taylor: Well, thank you very much.
Taylor: I hope it wasn’t too…
Chaskalson: No, no. I’m very glad to talk to you.